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Court: Lawyer necessary in federal litigation

December 5, 2008

Although the 7th Circuit Court of Appeals affirmed the convictions of a defendant and his company for violations of the Clean Water Act in an unpublished opinion today, the appellate court wrote a separate opinion to discuss the issue of whether a limited liability corporation can proceed pro se in federal litigation if an attorney had already worked on the case.

The 7th Circuit Court of Appeals addressed this issue in a September 2008 opinion ruling owners of an LLC must be represented by an attorney to appeal a decision in federal court. In today's opinion, United States of America v. Derrik Hagerman and Wabash Environmental Technologies, LLC, Nos. 07-3874, 07-3875, the judges had to consider whether Hagerman could continue pro se because an attorney representing Derrik Hagerman and his company had filed an opening brief and reply brief on behalf of the company. Hagerman then fired his attorney, hasn't replaced him, and now wants to represent the company pro se.

The case that comes closest to addressing this issue is Dial-A-Mattress Franchise Corp. v. Page, 880 F.2d 675 (2d Cir. 1989), but in that case, Page had incorporated his business just before his appeal was argued. Because the injunction was targeted specifically at Page and not the company, he could continue to appear pro se.

"In this case, with the appeal fully briefed and the merits free from doubt, we would be mistaken to grant the (imputed) motion," wrote Judge Richard Posner. "For that would allow Wabash to argue in future regulatory proceedings that the merits of its defense had never been fully adjudicated."

The federal appellate court found it best to affirm the judgment of the District Court in order to "lay to rest any doubt about the company's guilt."

"But it bears emphasis that at any point in a federal litigation at which a party that is not entitled to proceed pro se finds itself without a lawyer though given a reasonable opportunity to obtain one, the court is empowered to bar the party from further participation in the litigation," he wrote.

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